on September 07, 2016 Employee Benefits

Are We Allowed To Ask Employees About Previous Worker's Comp?

Common customer question #16: Are we allowed to ask about an applicant's previous work-related injuries and workers' compensation history during an interview? No, an employer may not ask about work-related injuries or workers’ compensation history in an interview.

A construction worker cutting steel

Asking about injuries may elicit information about a disability, and under the Americans with Disabilities Act (ADA), you may not ask disability-related questions until after you make a conditional job offer to the applicant. At that point, you may ask these kinds of questions only if you do so for all candidates for the same job and demonstrate that the questions are legitimately job-related and relevant to the needs of the business.

Unlike asking about injuries, we do not recommend asking about workers’ compensation claims even after making a conditional offer. The question would not be job-related or consistent with business necessity, and it is unlawful to retaliate or discriminate against an employee for filing a workers’ compensation claim.

If you’re concerned that an applicant may not be able to do the tasks of the job, you can ask whether they can perform the specific job functions with or without reasonable accommodation. You should not, however, ask whether the employee needs accommodation in an interview as this could reveal that the employee has a disability.

Paul Hardin

Paul Hardin is President of Moulton & Hardin, Inc. As an expert in both Employee Benefits and Workforce Management, Paul studies the relationship between all aspects of Human Capital Management, with an emphasis on Benefits Management, ACA, and how an HCM platform is invaluable for employers.

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